BVA9502568
DOCKET NO. 93-10 220 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to an increased evaluation for the postoperative
residuals of a right total knee replacement, currently rated as
30 percent disabling.
2. Entitlement to a combined disability rating of 60 percent for
two service-connected disabilities, each rated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Sandra L. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from November 1941 to May 1945.
This appeal is before the Board of Veterans' Appeals (the Board)
from a December 1991 rating decision of the Regional Office (RO)
which granted a 30 percent rating, effective August 1992, for the
veteran's right knee disorder; and a combined rating of 50
percent for the veteran's two service-connected disabilities,
effective August 1992. The case is now ready for appellate
review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the symptoms of his service-connected
right knee disorder warrant a disability evaluation in excess of
the 30 percent currently assigned. He asserts that he has very
limited range of motion in the knee and is unable to walk without
a cane. In addition, the veteran contends that a 60 percent
combined rating should be assigned for his right knee disorder,
currently rated as 30 percent disabling, and right ankle
disorder, currently rated as 30 percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
claims for an increased evaluation for a right knee disorder and
a 60 percent combined disability evaluation.
FINDINGS OF FACT
1. All relevant available evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the RO.
2. The veteran's right a total knee replacement is manifested by
some pain and tenderness with motion, and limitation of motion
measured at 5 degrees extension to 82 degrees flexion.
3. The veteran's right knee disability does not result in
frequent hospitalization nor marked interference with employment.
4. Service connection is also in effect for a right ankle
disorder, rated 30 percent disabling.
5. Under the regulatory table for combined ratings, the
veteran's two service-connected disabilities, rated as 30 percent
each, warrant a 50 percent combined rating.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 30 percent for a
right knee disorder have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40,
4.71a, Codes 5055, 5256, 5257, 5260, 5261, and 5262 (1994).
2. The combined rating for two disabilities, rated as 30 percent
each, is 50 percent. 38 U.S.C.A. §§ 1155, 1157 (West 1991);
38 C.F.R. §§ 4.1, 4.25, and Table I (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A person who submits a claim for benefits has the burden of
submitting evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.
38 U.S.C.A. § 5107. After reviewing the evidence on file we
conclude that the veteran's claims are well grounded within the
meaning of 38 U.S.C.A. § 5107(a). That is, the claims presented
are not inherently implausible. Furthermore, we conclude that
all facts pertinent to the claims have been developed and that as
such, there is no further duty to assist in developing the claim
as contemplated by 38 U.S.C.A. § 5107(a).
I. Entitlement to an increased evaluation for right knee
disorder
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the various
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there
is a question as to which of two evaluations shall be applied,
the higher evaluations will be assigned if the disability more
closely approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
When, after careful consideration of all procurable and assembled
data, a reasonable doubt arises regarding the degree of
disability, such doubt will be resolved in favor of the veteran.
38 C.F.R. § 4.3.
An extraschedular evaluation will be assigned if the case
presents an unusual or exceptional disability picture with such
related factors as marked interference with employment or
frequent period of hospitalization such as to render impractical
the application of the regular schedular standards. 38 C.F.R.
§ 3.321(b)(1). The entire history of the disability will be
reviewed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
Historically, the veteran sustained a combat wound to his right
ankle joint in July 1944 which resulted in surgical arthrodesis
and complete bony ankylosis. In 1946 the right ankle was again
surgically fused. The veteran was afforded a VA orthopaedic
examination in March 1948. The examination showed ankylosis of
the right ankle at 3 degrees plantar flexion in satisfactory
position. It was also noted that there was a chronic strain of
the right knee with a relaxed anterior cruciate ligament. In a
June 1948 rating decision, service connection was granted for the
right knee disorder secondary to the service-connected right
ankle disorder. A 10 percent rating was assigned to the right
knee disability and a 20 percent rating to the right ankle
disability. In a March 1960 rating decision, the RO increased
the disability evaluation for the veteran's right ankle disorder
to 30 percent.
Following a VA examination, the RO increased the disability
evaluation for the right knee disorder from 10 to 20 percent in a
March 1989 rating decision. In a December 1991 rating decision,
the disability evaluation for the veteran's right knee disorder
was again increased to its current rating of 30 percent.
VA outpatient treatment records, dated in 1990 and 1991, show
continued complaints of pain and poor range of movement in the
right knee. X-ray findings of June 1990 showed complete loss of
joint space in the right knee with a poor range of movement and a
20 degree flexion deformity.
A VA hospital discharge summary report, dated in June 1991, shows
that the veteran was admitted for a right total knee replacement.
Three days after surgery he began physical therapy. When he was
discharged he was ambulating without difficulty with the aid of a
walker. As of August 1991 the right knee had some slight
swelling, lacked 5 degrees of full extension and had flexion to
65 degrees.
The veteran was afforded a VA orthopaedic examination in April
1992. The examination was scheduled following a year long period
of convalescence following the total knee replacement surgery.
Recorded history was that the surgery had helped with his pain.
The examination report noted the veteran reported he still had
stiffness, soreness, and a little bit of motion in the right
knee. However, there was no swelling or giving way. He wore a
brace intermittently when he was up to using it. He used a cane
at times as well. He could walk approximately one mile.
Physical examination showed he could ambulate independently.
There was some pain with motion, some ache and pain and
tenderness. No effusion was seen. Motion was from 5 degrees to
82 degrees of flexion and no instability was seen. X-rays showed
a total right knee with prosthesis in good position. The final
diagnosis was status post right total knee replacement with
limited motion.
A VA physical therapy summary note, dated in May 1992, indicated
that the veteran had seen the orthopedist the day before and the
doctor was satisfied with his results. The veteran's right knee
lacked 5 degrees of full extension and flexed to 85 degrees. The
veteran also stated he only wore his knee brace if he was going
outside to do yard work. The therapist noted that the veteran
had received a total of 18 visits. He was ambulating very well
with no assistive device. He was discharged from physical
therapy to continue with home exercises and return on an "as
needed" basis.
Written statements from the veteran, dated in June and July 1992,
indicated that he had lost his balance and fallen several times.
He was carrying a cane at all times to keep his balance. He had
been told by his personal physician not to walk any more than was
necessary. He felt his knee should be rated higher.
VA outpatient clinic notes, dated in July 1992, show that the
veteran complained that for the past week his right knee had been
"cracking" and tight when walking. Physical examination revealed
a slight decrease in flexion and extension. There was no
crepitance, effusion or increased temperature.
VA outpatient clinic notes, dated in November 1992, show that the
previously noted calf cramping was minimal to none then. The
veteran was noted to ambulate with a cane. Strong pulses were
noted. The examiner was satisfied with the result and noted the
veteran should be seen again in one year for examination of the
knee and x-rays.
VA regulations provide that replacement of either knee joint with
a prosthesis warrants a 100 percent evaluation for a 1-year
period following implantation of the prosthesis. This period
commences at the conclusion of the initial grant of a total
rating for 1 month following hospital discharge pursuant to
38 C.F.R. § 4.30. Thereafter, a 60 percent evaluation is
warranted if there are chronic residuals consisting of severely
painful motion or severe weakness in the affected extremity.
With intermediate degrees of residual weakness, pain, or
limitation of motion, the disability will be rated by analogy to
diagnostic codes 5256, 5261 or 5262. The minimum evaluation is
30 percent. 38 C.F.R. § 4.71a, Code 5055.
Diagnostic Code 5256 provides that favorable ankylosis of either
knee warrants a 30 percent evaluation. Ankylosis is considered
to be favorable when the knee is fixed in full extension, or in
slight flexion at an angle between 0 degrees and 10 degrees. A
40 percent evaluation requires that the knee be fixed in flexion
at an angle between 10 degrees and 20 degrees. 38 C.F.R.
§ 4.71a, Code 5256.
Limitation of flexion of either leg to 15 degrees warrants a 30
percent evaluation, the highest possible under this rating code.
38 C.F.R. § 4.71a, Code 5260.
Limitation of extension of either leg to 20 degrees warrants a 30
percent evaluation. A 40 percent evaluation requires that
extension be limited to 30 degrees. A 50 percent evaluation
requires that extension be limited to 45 degrees. (Extension
limited to 5 degrees warrants a noncompensable rating.)
38 C.F.R. § 4.71a, Code 5261.
Diagnostic Code 5262 provides that malunion of the tibia and
fibula of either leg with marked knee or ankle disability
warrants a 30 percent evaluation. A 40 percent evaluation
requires nonunion of the tibia and fibula with loose motion
requiring a brace.
In addition, Diagnostic Code 5257 provides that a 30 percent
evaluation, the highest possible evaluation under this rating
code, requires severe impairment of a knee. 38 C.F.R. § 4.71a,
Code 5257.
In evaluating the degree of disability the Board must consider the
clinical findings of functional loss, as well as functional loss
due to pain. Functional loss due to pain may be found if
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R. §
4.40.
The Board finds, based on the evidence of record, that the
objective findings of the veteran's right knee disorder do not
warrant more than a 30 percent evaluation under Codes 5055, 5256,
5257, 5260, 5261, or 5262. The evidence shows that the veteran
had a good result from surgery; he does not have chronic
residuals resulting in severe painful motion or weakness in the
right leg. Extension is only 5 degrees and flexion is to 82-85
degrees. The recent VA examination found no ankylosis, and no
more than moderate limitation of range of motion, with some pain
and tenderness. Furthermore, the examination showed the veteran
had good mobility without the use of any additional aid, support,
or device. Although it was noted that he used a brace and cane
at times, the veteran has also indicated he could walk a mile.
It has also been reported that the surgery helped with the
complaints of pain.
The Board has also considered the provisions of 38 C.F.R. § 4.40
and the veteran's limitation of movement due to pain. Taking
into consideration the objective findings as well as the
subjective statements of the veteran, the Board finds that the
veteran's right knee disorder warrants no more than a 30 percent
evaluation.
In reaching our decision consideration has been given to the
potential application of the various provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the veteran as
required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We
also do not find that the evidence presents such an exceptional
or unusual disability picture as to render impractical the
application of the regular schedular criteria, so as to warrant
the assignment of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1). There is no evidence of frequent periods of
hospitalization or marked interference with employment due to
this disorder.
II. Entitlement to a 60 percent combined evaluation
VA regulations provide a schedule of ratings of reductions in
earning capacity from specific injuries or combination of
injuries. These ratings are based, as far as practicable, upon
the average impairments of earning capacity resulting from such
injuries in civil occupations. They provide for 10 separate
ratings: 10, 20, 30, 40, 50, 60, 70, 80, 90, and a total rating
of 100 percent. 38 U.S.C.A. §§ 1155, 1157; 38 C.F.R. §§ 4.1,
4.25.
A combined rating for two or more service-connected disabilities
is not arrived at by simply adding the percentage ratings
together. (In the instant case, the Board agrees that such
simple addition would have resulted in a combined disability
rating of 60 percent.) Rather, consideration is given to the
efficiency of the individual as affected first by the most
disabling condition, then by the less disabling condition(s), in
the order of severity. Thus, in the instant case, the veteran
has a 30 percent disability for his right ankle disorder. So he
is considered 70 percent efficient. Now, the second 30 percent
disability rating for his right knee disorder is considered.
Since the veteran has now been reduced to a 70 percent
efficiency, the second 30 percent is really just from that 70
percent. Since 30 percent of 70 percent is 21 percent, the
veteran loses another 21 percent in his total efficiency. So he
has a combined (30% and 21%) disability rating of 51 percent,
which is rounded to 50 percent as required by law. Consequently,
the veteran's claim for a combined rating of 60 percent, based on
his two service-connected disabilities of 30 percent each, must
be denied.
This legal "combination" of ratings, as distinguished from
"adding" of ratings can also be visualized in 38 C.F.R. Part 4,
Table I, the Combined Ratings Table, following 38 C.F.R. § 4.27.
The Board is bound by these regulations when determining combined
ratings. 38 U.S.C.A. § 7104.
Review of the record does reveal that, on occasion in the past,
the veteran's combined ratings have come to the same sum by
either addition or the use of the combined ratings table. For
instance when his ankle was rated 20 percent and the knee was
rated 10 percent the sum by addition was 30, as was the result
using the combined ratings table (20 combined with 10 was 28,
which rounded to the nearest 10 raised the 28 to 30). That
coincidence however does not invalidate the current combined
rating of 50 percent. That is the proper rating by law for the
disabilities at issue.
ORDER
An increased evaluation for the postoperative residuals of a
total right knee replacement is denied.
A combined rating of 60 percent for two service-connected
disabilities, each evaluated at 30 percent, is denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.